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Robert Marshall’s boat glides through waves and spray and breeze and glare. He sees a harbor of palms, all green and mauve in the sun. Maybe he’ll head in and drink a pina colada. Maybe he’ll just ride down the wind to the open sea. More likely, he will turn the page. The seascapes are daydreams evoked by National Geographic or Boating or Islands, three of the 10 magazines he receives by subscription on death row in New Jersey’s Trenton State Prison. This is not pina colada country. It is close confinement, gassy grub and numbing sameness day after day. And according to a jury that sentenced him to death in 1986 and four affirming court decisions, he deserves worse: execution by lethal injection. Lately, Marshall has created a new diversion. Sixteen years after being convicted of contracting the murder of his wife, Maria, in the case that inspired the best seller “Blind Faith,” the former Toms River, N.J., insurance salesman is trying to sell himself. For the first time and against his public defenders’ advice, he has invited news reporters to interview him on death row about his life and why he believes he deserves a new trial. It is a timely decision to talk. The 3rd U.S. Circuit Court of Appeals agreed on March 31 to hear his habeas corpus petition and he says, “I’m hoping these interviews will raise some interest in this case and get the panel to think long and hard about it.” On Feb. 7 and again on Friday, Marshall talked by telephone intercom from behind the window of a locked visitor’s cubicle not much bigger than a confessional. In the first interview, fidgeting with the gold wedding band he still wears, he declared that he was innocent of complicity in Maria Marshall’s death. “I loved her. I could never do what they said I did.” He talked about his grounds for appeal, including prosecutorial misconduct and railed against his trial counsel, the target of an ineffectiveness-of-counsel argument in his appeal. On that last point, Marshall says several private attorneys have told him since the trial that his trial lawyer, Haddonfield, N.J., sole practitioner Glenn Zeitz, would have won an acquittal if he had worked harder and smarter. He says he wishes his first choice, Michael Querques, the legendary criminal defense lawyer from northern New Jersey, hadn’t had a scheduling conflict. “To sit here with the realization a better lawyer would have won my case is rotting my gut,” he says. Zeitz, also talking about the case on the record for the first time since 1994, defends himself; he calls the criticism the “torture” of hindsight. He says, though, that Marshall deserves a new trial because of prosecutorial misconduct. It’s Marshall’s last chance. “If they decide against me, there isn’t any more appeal,” Marshall says. “We all know the chances of the [U.S.] Supreme Court granting certiorari is remote and that’s the last knot in the rope.” Marshall points out that although he lost before a jury, a trial judge, the state supreme court in three opinions and U.S. District Judge Joseph Irenas last June in a habeas petition, this is his first appeal to a tribunal outside the state. That puts him further along in the appeals process and therefore closest to execution of any of the 50 New Jersey inmates sentenced to death since capital punishment was reinstated in 1982. When Marshall arrived on death row he was the 19th person to be sent there under the new law. All but four are gone. Some died of natural causes, but most had their sentences reversed. Marshall says he knows that the issue is not whether he is innocent or guilty but whether he got a fair trial. It’s also a question of whether the New Jersey courts and Irenas were being disingenuous when they said all the errors that occurred — and there were plenty — didn’t rise to the level that violated Marshall’s rights. His only chance is for the appeals court to agree with a dissent by state supreme court Justices Alan Handler and Daniel O’Hern in 1994 complaining that their colleagues identified at least a dozen major errors without finding them, cumulatively, significant. “Concededly, a trial need not be perfect, but it cannot be reduced to shambles,” Handler wrote in his dissent. Among the chief issues before the 3rd Circuit is whether the failure of the prosecution to inform the defense about an immunity deal with a chief prosecution witness was reversible error or whether Zeitz’s admittedly minimalist presentation during the sentencing phase makes the death penalty unconstitutionally unfair in this case. For years, Marshall had told friends he’d rather face death than stay in prison for life, but he’s rethinking. “One part of me says yes,” he says of choosing death over life in jail. But he adds, speaking about his friends and his one loyal son, John: “They want me to live and be part of their lives, so I’ve changed my mind about that.” Prosecutor Kevin Kelly said in an interview last Wednesday that he’s no longer keen to have Marshall executed. Maybe being a criminal defense lawyer now has changed Kelly’s views, though he’s not a member of the Association of Criminal Defense Lawyers, the leading champion of a moratorium on executions. Perhaps, Kelly says, he’s changed because, at the age of 54, he is recovering from serious heart problems, an experience that has mellowed him about human frailty. When it gets down to executing someone, Kelly says, “You start to realize life is precious. As you get older you wonder if you have the right.” Then again, Kelly also says that though he remains no fan of Zeitz’s, “He did the best job he could considering the mountain of evidence against his client.” Marshall says he doesn’t buy Kelly’s belated sympathy. “I can’t give him any good thoughts. He was absolutely ruthless in that trial. He didn’t have any compassion.” The March 31 order by the 3rd Circuit has buoyed Marshall’s lawyers. The court overruled Irenas’ June 23, 2000, denial of a “certificate of appealability,” a procedural requirement for the continued pursuit of a habeas corpus appeals. Assistant Deputy Public Defender Barbara Hedeen says she is pleased that the court’s order includes no list of issues that the defense can raise. That means all dozen or more grounds for reversal are on the panel’s table, a staff attorney for the 3rd Circuit says. At 61, Marshall is no longer the tanned, confident man he was at his 1986 trial in Atlantic County Superior Court. He says, “I always felt throughout the trial the state never made its case. Now I realize we were blinded by partisanship.” Marshall spends most of his time these days reading, watching television, writing to friends and working on an autobiography. He says his favorite hobby, making elaborate picture frames out of colored cardboard, was halted last year when the straight pins he used to cut the paper were taken away because they were considered weapons. HIGH ROLLER In the summer of 1984, Marshall was anything but a man who would agonize over the loss of a couple of pins. He was a former Navy helicopter pilot, a casino high roller and big-time businessman with a beautiful wife, three handsome and dutiful sons and plenty of high-powered customers, friends and country club tennis buddies, including former state Senate President John Russo. Marshall also had dangerous secrets. For more than a year he had been having a love affair in motels with a married woman named Sarann Kraushaar. And he had been having some interesting conversations with two very shady people down South. The first person, according to evidence at his trial, was Robert Cumber, a hardware store clerk in Louisiana who Marshall had met at a party in New Jersey. The other was a former Louisiana sheriff’s deputy introduced by Cumber, Billy Wayne McKinnon. McKinnon later became the chief prosecution witness, and this was his story: Marshall, communicating at first through Cumber, hired McKinnon to kill Maria for $65,000. The motives: Eliminate the wife, clean up his debt by collecting her life insurance and continue carrying on with Kraushaar. It was to look like a robbery. On Sept. 6, 1984, McKinnon and Marshall picked out a spot on the Garden State Parkway, the Oyster Creek picnic area at milepost 71. They came together there again the next night as Marshall and Maria were heading home from a gambling trip to Atlantic City with $2,500 in winnings. When Marshall pulled off the road at the picnic area, ostensibly to check a troublesome tire, McKinnon and a Louisiana accomplice, Larry Thompson, pulled in behind him and struck him on the head as prearranged. Thompson then shot Maria to death on the front seat. Marshall told police it had to be a random robbery attempt, but the prosecution said later it was a sham. An investigation showed that Marshall was in debt and had taken out large insurance policies on Maria’s life just before the killing. Telephone records at his office led investigators to Cumber and eventually to McKinnon, who got a good bargain. McKinnon, in return for his testimony against Marshall, Cumber and Thompson and a guilty plea to conspiracy, received a five-year sentence. Marshall had his own version at the trial and he is sticking to it. First, he says, he only hired McKinnon to investigate his wife in hopes of getting information on whether she was cheating on him. Second, the attack on Marshall really was a robbery attempt by McKinnon — he knew about Marshall’s casino winnings that night — and Maria was killed to stop her from identifying the men she saw assaulting her husband. Not that Marshall considers himself wholly innocent. “I blame myself,” he says. “I had nothing to do with Maria being killed but I feel responsible because if I hadn’t had the affair she wouldn’t have been killed. I take full responsibility and can only blame myself for being here.” He also blames others, notably Zeitz. Claims of ineffective assistance of counsel are commonly raised and rarely successful. The history of death penalty litigation in America shows that it takes a lot to win such arguments even when the defense lawyer is an untutored hillbilly who snored during the trial. But proving one against a criminal defense lawyer with 29 years of experience and a record of victories — which Zeitz has — hasn’t worked for Marshall so far, but he’s trying again. The habeas petition says Zeitz made 18 crucial mistakes, all of which the previous courts have rejected as “a lengthy series of inconsequential minutiae.” Marshall says Zeitz erred by failing to find and highlight evidence that would have discredited the state’s claim that the crime was motivated by Marshall’s need for money. According to the state’s theory of the case, Maria’s murder not only eliminated a wife Marshall no longer wanted; it gave him the insurance proceeds to clear up his crushing debt and continue on with Kraushaar in style. Marshall says, though, that Zeitz failed to find and introduce clear evidence that showed Marshall’s finances actually were in excellent shape and that he could have afforded a legal break with Maria and lived quite nicely afterward. His appeal says the defense never contacted Marshall’s accountant or tried in a meaningful way to refute the prosecution’s evidence that he owed more than $300,000. If Zeitz had called expert witnesses, they could have given evidence helpful to Marshall’s claim that he had plenty of money and that sums that looked like debt on the prosecution’s papers, like second mortgages payable over time, were clearly offset by assets. “The $300,000 figure was a lot of bull,” Marshall says. Marshall says bitterly that Zeitz didn’t call experts because “he didn’t want to spend money.” The appeal pleadings also say Zeitz erred terribly by deviating from professional standards and announcing during his opening statement that Marshall would take the stand. That statement locked the defense into making Marshall testify, destroying room for maneuver, putting the state on notice and giving Kelly extra time to prepare for cross-examination. The appeal also says Zeitz made two serious errors at the end of the case. First, he made a deal with Kelly in the hallway, just before summations, that they wouldn’t interrupt each other’s closings. “And Zeitz, like a dope, agreed,” Marshall says. As a result, the defense now argues, Kelly was able to make outrageous and inflammatory statements to the jury with no objection from Zeitz. In addition, Zeitz botched the penalty phase, the habeas petition says. Page after page of the petition contain lists of failures during sentencing, ranging from failure to present mitigating evidence to not calling experts who would have helped Marshall, including his son John and his mother, Oakleigh DeCarlo. Finally, the petition took Zeitz to task for not even asking the jury to spare Marshall’s life. He says Zeitz exuded confidence when he hired him. “He said, ‘The prosecutor is going to make a lot of mistakes, but I’m not.’ “ A PICTURE OF SUCCESS Sitting in his office in Haddonfield for an interview in February, Zeitz didn’t look like a man who has made many mistakes, at least not any that have had an economic effect on him. His office, restored in colonial style, looks like a museum, and not just from the art on the walls. Bathed in light from bulbs recessed in the ceiling, objects in the room, like the brass sconces, a ship’s bell and a brass cigarette box, shone in hues of white and gold, and so did the white-haired Zeitz himself. Everything about him shouted success, particularly the wall full of clippings about the criminal trials he has won in New Jersey and Pennsylvania. There are clippings about the Marshall case on the wall, too, and a copy of Joe McGinniss’ “Blind Faith” sits on a little table. Except for post-trial testimony in a supreme court-ordered remand in 1994 — testimony that didn’t lead to any post-conviction relief for Marshall — Zeitz hasn’t spoken on the record about the trial. Now, he says, “I’m going to be as candid and open as I can, for the first time.” He says Marshall clearly deserves a new trial on prosecutorial misconduct grounds. He also says the certificate of appealability to the 3rd Circuit was well-deserved. He acknowledges there may be sad truth to the idea that executing Marshall, a well-to-do white man, would give the state public relations points in support of its arguments that the death penalty’s application is racially proportional. Marshall calls such talk “speculative conjecture,” but Zeitz says, “He has become the poster child for the death penalty in New Jersey.” But Zeitz won’t fall on his sword and admit to being legally ineffective at trial. He says of appellate lawyers, “They have an obligation to take a shot at you. Your obligation is to tell the truth and let the court determine what it all means.” He says that in all the cases he’s had over the years, an appeal based on ineffectiveness of counsel has never been successful. He says Marshall signed off on all the decisions he made, including the decision to keep the penalty phase short. “We jointly decided that less was better than more,” though Marshall says he was never consulted on the penalty phase presentation. Zeitz says he didn’t put on a full-scale penalty defense because he made an agreement with the prosecutor that even in hindsight was to the best advantage of his client. Under the deal, neither side called witnesses or argued for or against a full range of aggravating or mitigating factors. Zeitz says testimony in the penalty phase would have been a repeat of character witnesses the jury heard in the guilt phase. To bring them back would have invited Kelly to bring back his own witnesses from early in the trial — including McKinnon, or the pathologist who described the victim’s wounds — to remind the jury of the victim’s suffering. The habeas petition takes particular umbrage at the terseness and coldness of Zeitz’s summation. He concluded it by saying: “All I can say is this, that I hope when you individually consider the death penalty, that you’re each able to reach whatever opinion you find in your own heart, and that whatever you feel is the just thing to do, we can live with it.” Saying, “we can live with it” suggested to the jury that the defense didn’t really care, Marshall’s defense now says. And Marshall says he thinks Zeitz was so overconfident of acquittal he never prepared for the penalty phase. But Zeitz says he used a similar abbreviated approach with success in another case — the defense of a Camden, N.J., man, Joseph Guagenti, who shot his girlfriend to death before a crowd of witnesses in a go-go bar. The jury, whose murder finding was later reversed, voted 9-3 for execution so he got a life term. Zeitz rejected the notion that the cost of experts was a factor at any point in the defense. “That played no part in any decision made in this case,” he says, and if he had been inclined to cut corners, Marshall would never have allowed it. “Does he strike you as the kind of person who would allow that?” Zeitz asks. “The client’s wishes were always respected and he wasn’t just a back-seat driver.” In general, he concludes, “You can torture yourself with hindsight when there’s a conviction.” DAMAGING VIOLATIONS The appeal grounds that have merit, he insists, are the ones that allege prosecutorial misconduct, including numerous discovery violations. The supreme court dissenters found three of those violations particularly damaging. First was the nondisclosure to the defense of a grant of immunity to Kraushaar, who testified at the trial that Marshall told her before the crime that it would be good if Maria were dead. Because it didn’t know about the grant, the defense was unable to use the state’s promise to try impeaching the witness. The existence of the immunity promise wasn’t disclosed until three years after the trial when Kraushaar’s lawyer mentioned it to a New York Times reporter. In his comments last week, Kelly, the prosecutor, repeated his statement made years ago that although the immunity grant may have been in the files, he didn’t know of it. And he says knowledge of the grant wouldn’t have helped the defense because Kraushaar’s story after getting immunity wasn’t any different from what it was before she received it. The petition also seeks reversal on the ground that the defense wasn’t told that McKinnon was placed in the federal witness protection program. An Ocean County, N.J., investigator disclosed years after the trial that McKinnon went into the program because of matters unrelated to Marshall’s case. By the defense’s reckoning, McKinnon’s relationship with federal authorities was discoverable and perhaps could have been used to impeach his credibility. In his response to the habeas corpus petition, Deputy Attorney General Robert Bonpietro argued, in effect, that so much dirt on McKinnon came out at the trial — and the jury believed him about Marshall’s role, anyway — a little more wouldn’t have mattered. In fact, Bonpietro argued, McKinnon’s testimony was so weak on some points, the man he fingered as the triggerman, Thompson, was acquitted and the jury still believed what McKinnon said about Marshall. GETTING AT MCKINNON Marshall says he is pining for a reversal of Irenas’ decision against an evidentiary hearing just to get a chance to have his lawyers grill McKinnon. “McKinnon was obviously lying,” Marshall says. He says, “we’re convinced McKinnon was given the discovery file before he made his statements. I think the Ocean County Prosecutor’s Office spoon-fed him.” Also at issue is whether the state took evidence against Marshall from a locked mailbox without a warrant. Before he was arrested, Marshall went to a motel — the same one where he used to meet his girlfriend — composed final messages to his sons and sent a tape to a lawyer-relative who had handled some legal affairs for him. He testified he planned to kill himself with an overdose of pills, but he fell asleep and within a few minutes the police, alerted by a desk clerk, broke in. The prosecution argued that it wasn’t really a suicide attempt, just a crude attempt by Marshall to gain sympathy and get seemingly exculpatory material onto the record. And the tape to the lawyer, which included Marshall’s comments about paying money to McKinnon, went into evidence. The defense argues that the tape should have been suppressed. First, the defense says, it was seized from a locked mailbox in the motel lobby, not from an open desktop, as the prosecution says. Second, it was a privileged communication to his lawyer. Zeitz, though, was already in the case on the criminal defense side, and every appeals court has rejected Marshall’s arguments that the tape evidence violated his rights. Under prison rules, Marshall won’t be going to appeals court arguments that might be held, so he will continue keeping busy writing, watching television and reading. He says he never read “Blind Faith,” which paints a dismal portrait of him and was written in great measure from the perspective of Marshall’s sons. “I haven’t read it because I knew it would upset me,” Marshall says. Yet he knows most of what’s in it, including the part about how his oldest son, Robert Jr., came to believe he was guilty and broke off all contact. His youngest son, John, remains a supporter, though, and Marshall talks to John on the phone and buys the family gifts. The latest was a DVD player. Marshall keeps a picture of his dead wife, Maria, above his cot so she’s the first thing he sees in the morning. “For the first five years I didn’t display it. It was too hurtful,” he says. “But it’s a beautiful picture. I made a frame for it. It has a halo effect.”

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